No.

17-____

IN THE

Supreme Court of the United States

————
NATURAL RESOURCES DEFENSE COUNCIL,
Petitioner,
v.
MEXICHEM FLUOR, INC., et al.,
Respondents.
————
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
District of Columbia Circuit
————
PETITION FOR A WRIT OF CERTIORARI
————

DAVID D. DONIGER
Counsel of Record
DAVID R. BAAKE
IAN FEIN
GERALD GOLDMAN
BENJAMIN LONGSTRETH
MELISSA J. LYNCH
NATURAL RESOURCES
DEFENSE COUNCIL
1152 15th St. NW Suite 300
Washington, DC 20005
(202) 289-6868
ddoniger@nrdc.org
Counsel for Petitioner
June 25, 2018
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
 QUESTION PRESENTED
Congress enacted Title VI of the Clean Air Act to
phase out the production of chemicals that destroy the
stratospheric ozone layer and to ensure the safety of
the substitutes developed to replace them in millions
of products, from air conditioners to aerosol sprays.
Section 612, titled “Safe Alternatives Policy,” serves
the latter objective, directing that “[t]o the maximum
extent practicable” ozone-depleting substances “shall
be replaced” by substitutes “that reduce overall risks
to human health and the environment.” 42 U.S.C.
§ 7671k(a). Section 612 makes it unlawful to replace
an ozone-depleting substance with a dangerous
substitute where EPA has determined that a safer
alternative is available, and directs EPA to establish
and update lists of substitutes that are safe or
prohibited for specific uses. Id. § 7671k(c), (d).
For more than two decades EPA interpreted Section
612 to bar anyone from using a dangerous substitute
in applications listed as prohibited. In the decision
below, however, a divided D.C. Circuit panel decided
that EPA’s authority ends once product manufactur-
ers adopt substitutes that do not deplete ozone. Under
the ruling, no matter how toxic, flammable, or
environmentally harmful those substitutes may be,
and no matter how much safer the available alterna-
tives, such manufacturers are immune from further
regulation under Section 612.
The question presented is:
Whether EPA has authority under Section 612 to
prohibit use of dangerous but non-ozone-depleting
substitutes by any person, including by product
manufacturers who began using such substitutes
before EPA placed them on the prohibited list?

(i)
 ii
PARTIES TO THE PROCEEDINGS
Petitioner Natural Resources Defense Council was
an intervenor in support of EPA in the court of appeals.
Additional respondent-intervenors in support of EPA
were Honeywell International, Inc., and the Chemours
Company FC, LLC.
EPA was respondent in the court of appeals.
Petitioners below, who are respondents here, are
Mexichem Fluor, Inc. (“Mexichem”), and Arkema Inc.
(“Arkema”).
RULE 29.6 DISCLOSURE STATEMENT
Petitioner Natural Resources Defense Council has
no parent company and has issued no publicly held
stock.
 TABLE OF CONTENTS
Page
QUESTION PRESENTED .................................. i
PARTIES TO THE PROCEEDINGS .................. ii
RULE 29.6 DISCLOSURE STATEMENT ......... ii
TABLE OF AUTHORITIES ................................ v
OPINION BELOW .............................................. 1
JURISDICTION .................................................. 1
STATUTES AND
REGULATORY PROVISIONS ........................ 1
A. Statutes ..................................................... 1
B. Regulations ............................................... 2
INTRODUCTION ................................................ 3
STATEMENT OF THE CASE ............................ 6
A. The Safe Alternatives Program ................ 6
1. Clean Air Act Section 612.................... 6
2. The 1994 Regulations .......................... 7
3. Listing Decisions Since 1994 ............... 11
B. 2015 Regulation of HFCs.......................... 12
C. The Decision Below ................................... 16
1. The Majority Opinion .......................... 16
2. The Dissent .......................................... 17
D. EPA’s 2018 Guidance................................ 18
REASONS FOR GRANTING THE PETITION... 19

(iii)
 iv
TABLE OF CONTENTS—Continued
Page
I. THE DECISION BELOW DESTROYS A
CORE CLEAN AIR ACT PROGRAM
AND PUTS MILLIONS OF AMERI-
CANS IN DANGER .................................. 19
II THE MAJORITY’S ERROR CAN BE
CORRECTED ONLY BY THIS COURT .. 23
III. THE DECISION BELOW CONFLICTS
WITH THE TEXT, STRUCTURE, AND
PURPOSE OF SECTION 612 .................. 23
A. The Statutory Text Does Not Mandate
the Majority’s Restrictive Interpreta-
tion of “Replace” ................................... 24
B. The Majority’s Interpretation Con-
flicts with the Statutory Context and
Structure .............................................. 26
C. The Majority’s Interpretation Con-
flicts with the Express Statutory
Policy .................................................... 27
D. The Majority’s Interpretation Pro-
duces Illogical Consequences and
Perverse Incentives That Congress
Could Not Have Intended ................... 29
CONCLUSION .................................................... 32
 v
TABLE OF AUTHORITIES
CASES Page(s)
Alliance for Responsible
CFC Policy, Inc. v. EPA,
No. 94-1396 (D.C. Cir. filed June 16,
1994) .......................................................... 11
Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc.,
467 U.S. 837 (1984) ................................... 32
Coal. for Responsible Regulation, Inc. v.
EPA, 684 F.3d 102 (D.C. Cir. 2012) ......... 12
EPA v. EME Homer City Generation, L.P.,
134 S. Ct. 1584 (2014) ............................... 6, 23
FERC v. Elec. Power Supply Ass’n,
136 S. Ct. 760 (2016) ................................. 23
Massachusetts v. EPA,
549 U.S. 497 (2007) ................................... 21, 29
Michigan v. EPA,
135 S. Ct. 2699 (2015) ............................... 23
Util. Air Regulatory Grp. v. EPA,
134 S. Ct. 2427 (2014) ............................... 12, 23
STATUTES AND REGULATIONS
28 U.S.C. § 1254(1) ....................................... 1
42 U.S.C. § 7409 ........................................... 29
42 U.S.C. § 7607(b)(1)............................. 15, 23, 24
42 U.S.C. §§ 7671-7671q .............................. 6
42 U.S.C. § 7671d(a)(3) ................................ 31
42 U.S.C. § 7671k ........................................passim
 vi
TABLE OF AUTHORITIES—Continued
Page(s)
42 U.S.C. § 7671k(a) ....................................passim
42 U.S.C. § 7671k(c) ....................................passim
42 U.S.C. § 7671k(d) ....................................passim
40 C.F.R. § 82.170(a) .................................... 8
40 C.F.R. § 82.174(d) .............................. 10, 11, 24
40 C.F.R. § 82.178(6) .................................... 8
40 C.F.R. § 82.180 ........................................ 8
40 C.F.R. § 82.180(a)(7) ................................ 8
40 C.F.R. § 82.184(b)(3) ................................ 10
59 Fed. Reg. 13,044 (Mar. 18, 1994) ...........passim
61 Fed. Reg. 54,030 (Oct. 16, 1996) ............. 11
64 Fed. Reg. 3,865 (Jan. 26, 1999) ............... 12
74 Fed. Reg. 66,496 (Dec. 15, 2009) ............. 12
76 Fed. Reg. 17,488 (Mar. 29, 2011) ............ 13
80 Fed. Reg. 42,870 (July 20, 2015) ............passim
81 Fed. Reg. 86,778 (Dec. 1, 2016) ............... 31
83 Fed. Reg. 18,431 (Apr. 27, 2018) ... 18, 19, 21, 30
INTERNATIONAL TREATIES
Amendment to the Montreal Protocol on
Substances that Deplete the Ozone Layer,
Oct. 15, 2016, U.N.T.C. XXVII.2.f ............ 15
 vii
TABLE OF AUTHORITIES—Continued
Page(s)
Montreal Protocol on Substances that
Deplete the Ozone Layer, Sept. 16,
1987, S. Treaty Doc. No. 100-10, 1522
U.N.T.S. 29 ................................................ 6
OTHER AUTHORITIES
136 Cong. Rec. H12908 (Oct. 26, 1990),
reprinted in 1 A LEG. HIST. OF THE CLEAN
AIR ACT AMENDMENTS OF 1990 (1993) ...... 7
Am. Heritage Dictionary (5th ed. 2018
online) ......................................................... 26
U.S. Global Change Research Program,
Climate Science Special Report: Fourth
National Climate Assessment, Volume I
(Donald. J. Wuebbles et al. eds., 2017) .... 21
Y. Xu et al., The Role of HFCs in Mitigating
21st Century Climate Change, 13 Atmos.
Chem. Phys. 6083 (2013), available at
https://doi.org/10.5194/acp-13-6083-2013 ... 13
 OPINION BELOW
The opinion of the United States Court of Appeals
for the D.C. Circuit is reported at 866 F.3d 451. The
opinion may be found in the Appendix to the Petition
for Certiorari of Honeywell International, Inc., et al.,
filed June 25, 2018 (hereinafter “App.”) at 1a.
JURISDICTION
The D.C. Circuit’s judgment was entered on August
8, 2017. That court denied petitions for rehearing on
January 26, 2018. App. 47a. On March 16, 2018,
Chief Justice Roberts extended the time for filing a
petition for certiorari until June 25, 2018. This Court’s
jurisdiction is invoked under 28 U.S.C. § 1254(1).
STATUTES AND REGULATORY PROVISIONS
A. Statutes
Section 612 of the Clean Air Act, 42 U.S.C. § 7671k,
titled “Safe Alternatives Policy,” states in relevant
part:
(a) Policy
To the maximum extent practicable, class I
and class II substances [i.e., ozone-depleting
substances] shall be replaced by chemicals,
product substitutes, or alternative manu-
facturing processes that reduce overall risks
to human health and the environment.
...
(c) Alternatives for class I or II substances
Within 2 years after November 15, 1990, the
Administrator shall promulgate rules under
this section providing that it shall be
unlawful to replace any [ozone-depleting]
 2
substance with any substitute substance
which the Administrator determines may
present adverse effects to human health or
the environment, where the Administrator
has identified an alternative to such
replacement that—
(1) reduces the overall risk to human
health and the environment; and
(2) is currently or potentially available.
The Administrator shall publish a list of
(A) the substitutes prohibited under this
subsection for specific uses and (B) the safe
alternatives identified under this subsection
for specific uses.
(d) Right to petition
Any person may petition the Administrator to
add a substance to the lists under subsection
(c) of this section or to remove a substance
from either of such lists. The Administrator
shall grant or deny the petition within 90
days after receipt of any such petition. If
the Administrator denies the petition, the
Administrator shall publish an explanation
of why the petition was denied. If the
Administrator grants such petition the
Administrator shall publish such revised list
within 6 months thereafter. . . .
B. Regulations
The Environmental Protection Agency (“EPA”) prom-
ulgated the regulations required by Section 612(c) in
1994 at 40 C.F.R. Part 82. 59 Fed. Reg. 13,044 (Mar.
18, 1994). Excerpts of the regulatory text are reprinted
at App. 49a-72a.
 3
EPA promulgated the final rule challenged in this
case in 2015. 80 Fed. Reg. 42,870 (July 20, 2015).
Excerpts of the rule are reprinted at App. 73a-128a.
INTRODUCTION
The divided ruling below cuts the heart out of
Section 612 of the Clean Air Act, the provision that
Congress enacted in 1990 to ensure the safety of chem-
icals that substitute for ozone-depleting substances in
millions of air conditioners, refrigerators, aerosol cans,
insulating foams, and other products. Congress sought
to ensure that industry did not respond to the dangers
of ozone depletion by jumping from the frying pan into
the fire – by adopting substitutes for ozone-depleting
substances that create new and avoidable health or
environmental risks, possibly even greater than those
posed by the original chemicals.
To this end, Section 612 establishes the policy of
replacing ozone-depleting substances “[t]o the maximum
extent practicable” with substitutes and alternatives
that “reduce overall risk to human health and the
environment.” 42 U.S.C. § 7671k(a). Section 612
directs EPA to make it “unlawful to replace” an ozone-
depleting substance with a substitute that is danger-
ous to human health or the environment where there
is a lower-risk alternative. Id. § 7671k(c). The statute
also directs EPA to establish and keep up-to-date a list
of substitutes that are prohibited for specific uses, and
a list of safe alternatives. Id. § 7671k(c), (d).
Since it was established in 1994, EPA’s safe alterna-
tives program under Section 612 has effectively
protected millions of consumers from dangerous sub-
stitutes, and efficiently guided multi-billion-dollar
investments by hundreds of companies to develop
safer substitutes and products. The majority’s ruling,
 4
however, gravely misreads Section 612 to leave both
the public protections and the business incentives of
the safe alternatives program in tatters.
From the program’s outset in 1994, EPA has inter-
preted Section 612(c) to bar anyone from utilizing a
dangerous substitute in a use the agency has listed as
prohibited. Updating the safe and prohibited lists
more than 20 times since then, EPA has prohibited the
use of both ozone-depleting and non-ozone-depleting
substitutes in dozens of applications because those
substitutes are toxic, flammable, damaging to the cli-
mate, or otherwise environmentally dangerous, and
because safer alternatives are available. The 2015 rule
at issue in this case, prohibiting certain uses of the
potent greenhouse gases called hydrofluorocarbons
(“HFCs”), was just the latest such action.
The majority ruling, however, opens a gaping
loophole in the safe alternatives program by redefin-
ing the meaning of “replac[ing]” an ozone-depleting
substance. Under the ruling, once a product manufac-
turer adopts a substitute that does not deplete ozone,
the company is grandfathered from further regulation
under Section 612, and it may continue using the
substitute in perpetuity regardless of any subsequent
prohibition by EPA. In one swoop, the majority ruling
deprived Section 612 of almost all force and effect.
See App. 22a.1 A ruling this consequential for both
health and environmental protection and industrial
innovation requires this Court’s review.
The majority ruling guts not only the HFC rule; it
rewrites the fundamentals of Section 612 so that it will

1
Appendix citations are to the Appendix to the Petition for
Certiorari of Honeywell International, Inc., et al., filed June 25,
2018.
 5
never again be effective at protecting the public or
promoting innovation. The ruling relegates EPA to
the role of neighborhood scold – it can tell companies
that certain substitutes are bad for human health and
the environment, but (except for a few remaining early
substitutes that themselves deplete ozone) the agency
is powerless to stop companies that already use
dangerous substitutes from continuing to do so.
As a result, the decision leaves millions of Americans
at risk from toxic, flammable, climate-changing, or
otherwise harmful chemicals in products they use
every day. And it destroys the incentives that innova-
tive businesses relied on to invest billions of dollars in
bringing safer alternatives to market. The decision
protects only two chemical companies whose business
plans depend on continuing to sell old and dangerous
chemicals.
As Judge Wilkins explained in dissent, this danger-
ous result has no basis in the statutory text, contradicts
the statute’s structure, and “makes a mockery” of Section
612’s express purpose of replacing ozone-depleting
substances with substitutes that reduce overall health
and environmental risks to the maximum practicable
extent. App. 34a. The majority opinion creates irra-
tional distinctions and perverse consequences that
Congress could not have intended – including allowing
companies to reintroduce unsafe chemicals that have
been prohibited since 1994, provided that those
companies are not switching directly from an ozone-
depleting substance.
Supreme Court review is the only means of preserv-
ing Section 612’s vital health and environmental
safety program. Because the Clean Air Act assigns
exclusive jurisdiction to the D.C. Circuit, the statutory
authority question in this case can never come before
 6
another circuit or arise in a future case. For this
reason, the Court regularly reviews divided D.C.
Circuit decisions that undermine important Clean Air
Act programs. See e.g., EPA v. EME Homer City
Generation, L.P., 134 S. Ct. 1584 (2014). The Court
should grant certiorari to correct the panel majority’s
erroneous decision and prevent Section 612 from
becoming a dead letter.
STATEMENT OF THE CASE
A. The Safe Alternatives Program
1. Clean Air Act Section 612
In 1990, Congress enacted Title VI of the Clean Air
Act, 42 U.S.C. §§ 7671–7671q, to implement and go
beyond the requirements of the Montreal Protocol on
Substances that Deplete the Ozone Layer.2 Title VI
phases out the production of ozone-depleting sub-
stances (called “class I and class II substances”) more
rapidly than required by the Protocol. And to make
sure that the transition from ozone-depleting sub-
stances does not lead to other, possibly even worse,
health or environmental problems, Congress adopted
Section 612, titled “Safe Alternatives Policy,” to
regulate the safety of the substitutes and alternatives
for ozone-depleting substances. 42 U.S.C. § 7671k.
The express purpose of Section 612 is to assure “[t]o
the maximum extent practicable” that substitutes for
ozone-depleting substances “reduce overall risks to
human health and the environment.” Id. § 7671k(a).
As stated in a summary of the conference committee
agreement: “[T]he [EPA] Administrator shall base risk

2
Montreal Protocol on Substances that Deplete the Ozone
Layer, Sept. 16, 1987, S. Treaty Doc. No. 100-10, 1522 U.N.T.S.
29.
 7
estimates on the total environmental risk (toxicity,
flammability, atmospheric, etc.) that is perceived to
exist, not just the risk as it relates to ozone depletion.”3
Section 612(c) directs EPA to promulgate rules
making it unlawful for anyone “to replace” an ozone-
depleting substance with a substitute that EPA has
found to adversely affect human health or the environ-
ment, where the agency has identified an available
alternative that “reduces the overall risk to human
health and the environment.” Id. § 7671k(c). The
same subsection directs EPA to publish lists of “(A) the
substitutes prohibited under this subsection for specific
uses and (B) the safe alternatives identified under this
subsection for specific uses.” Id. Underscoring the
intent that these lists are intended to evolve with new
information on risks and alternatives, Section 612(d)
provides a right to petition EPA to add or remove
substances from the safe and prohibited lists, and it
requires the agency to quickly respond to such peti-
tions. Id. § 7671k(d).
2. The 1994 Regulations
EPA issued regulations in 1994 establishing a
comprehensive safe alternatives program to imple-
ment Section 612. 59 Fed. Reg. 13,044 (Mar. 18, 1994)
(hereinafter “1994 rule”). The regulations state the
program’s objectives: “to promote the use of those
substitutes believed to present lower overall risks to
human health and the environment relative to the
[ozone-depleting] compounds being replaced, as well
as to other substitutes for the same end-use, and to
prohibit the use of those substitutes found, based on the

3
136 Cong. Rec. H12908 (Oct. 26, 1990), reprinted in 1 A LEG.
HIST. OF THE CLEAN AIR ACT AMENDMENTS OF 1990, at 1428
(1993).
 8
same comparisons, to increase overall risks.” 40 C.F.R.
§ 82.170(a) (emphasis added).
The 1994 rule established the initial lists of prohib-
ited and safe substitutes required under Section 612(c).
The rule designated various substitutes as “acceptable”
(safe) for dozens of uses (sometimes with use condi-
tions or limitations). See 40 C.F.R. § 82.180; 59 Fed.
Reg. at 13,122–46 (initial lists). The rule also listed
various substitutes as “unacceptable” (prohibited) for
particular uses in light of their high risks and the
availability of safer alternatives. Id.
EPA made these acceptable and unacceptable listing
decisions through a seven-factor comparative risk
analysis that includes consideration of atmospheric
effects and health and environmental impacts, toxicity,
flammability, occupational and consumer risks, eco-
system risks, and the availability of other substitutes.
40 C.F.R. § 82.180(a)(7). From the outset, EPA consid-
ered a substitute’s contribution to climate change as
one factor in listing decisions, using an index called
“global warming potential” (“GWP”), which measures
a chemical’s heat-trapping potency relative to carbon
dioxide. Id. § 82.178(6); see 59 Fed. Reg. at 13,055.
Evaluating HFCs, EPA noted in the 1994 rule that
they are not ozone-depleting, but they are potent
greenhouse gases, with thousands of times the heat-
trapping power of carbon dioxide. As a result, “rapid
expansion of the use of some HFCs could contribute to
global warming.” 59 Fed. Reg. at 13,071. At the time,
however, the agency concluded that HFCs posed “lower
overall risk than continued use of” chlorofluorocarbons
(“CFCs”), which both deplete ozone and have even
higher GWPs than HFCs. Id. Based on this compari-
son, EPA determined that, absent available lower-risk
alternatives, HFCs could serve as a “near-term option
 9
for moving away from CFCs.” Id. at 13,071–72.
Accordingly, the agency listed HFCs as acceptable
substitutes for certain end-uses of CFCs. See id. at
13,074–13,081 (refrigeration and air conditioning),
13,085–89 (foams), 13,116 (aerosols). At the same
time, however, EPA made clear that these initial
acceptable listings could be revised in the future based
on new health or environmental risk information or
the emergence of safer alternatives. Id. at 13,047.
Some commenters in that rulemaking – including
the corporate predecessor of Arkema, one of the peti-
tioners below – argued that a substitute’s “acceptable”
status could never be revoked, and a person using that
substitute could never be required to change. Unless
the substitute itself depletes ozone, they argued, EPA
lacked authority to require someone to replace it,
even if a safer alternative were to become available
after the initial listing. See, e.g., Elf Atochem (now
Arkema), Comments on the Proposed Significant New
Alternatives Policy Program at 1, EPA Air Docket No.
A-91-42-IV-D-30 (June 18, 1993) (“Once a substance
has been approved and is in use in a particular
application, the Agency’s authority ceases.”). In the
alternative, the company asked EPA to guarantee that
the “acceptable” listings would last for 10 years, a
period the company said “will allow for an appropriate
return on investment.” Id.
EPA expressly rejected the argument that “replacing”
ozone-depleting chemicals happens only once and that
companies that begin using non-ozone-depleting sub-
stitutes are exempt from any further regulation. The
1994 rule stated: “EPA believes that [ozone-depleting]
substances are ‘replaced’ within the meaning of
section 612(c) each time a substitute is used, so that
 10
once EPA identifies an unacceptable substitute, any
future use of such substitute is prohibited.” 59 Fed.
Reg. at 13,048. The agency continued:
Under any other interpretation, EPA could
never effectively prohibit the use of any
substitute, as some user could always start
to use it prior to EPA’s completion of the
rulemaking required to list it as unaccept-
able. EPA believes Congress could not have
intended such a result, and must therefore
have intended to cover future use of existing
substitutes.
Id.
Accordingly, EPA affirmed its authority to change
listings based on new risk information or the emer-
gence of safer alternatives: “[T]he Agency may revise
these [listing] decisions in the future as it reviews
additional substitutes and receives more data on
substitutes already covered by the program.” Id. at
13,047. The agency promised to take such actions
through rulemaking: “[O]nce a substitute has been
placed on either the acceptable or the unacceptable
list, EPA will conduct notice-and-comment rulemak-
ing to subsequently remove a substitute from either
list.” Id.
The regulations codified this understanding. Imple-
menting Section 612(d), the rules provide for petitions
“to delete a substitute from the acceptable list and add
it to the unacceptable list.” 40 C.F.R. § 82.184(b)(3).
And they provide that “[n]o person may use a substi-
tute after the effective date of any rulemaking adding
such substitute to the list of unacceptable substitutes.”
Id. § 82.174(d).
 11
Nothing in the 1994 regulatory language, preamble,
or listing decisions distinguishes between an entity
that is still using an ozone-depleting substance and an
entity that has already switched to a non-depleting
substitute. If EPA changes the status of a substitute
from acceptable to unacceptable, then 40 C.F.R.
§ 82.174(d) specifies that “no person” may use it,
regardless what that person is currently using.
The industry commenters petitioned for review of
the 1994 rule through their trade association, specifi-
cally raising the issue of “grandfathering in the event
of a change in . . . listing.” See Alliance for Responsible
CFC Policy, Inc. v. EPA, No. 94-1396 (D.C. Cir. filed
June 16, 1994); see also Joint Status Report at 3,
Alliance, No. 94-1396 (D.C. Cir. Sept. 24, 1997) (listing
issues). The association dropped the case, however,
obtaining no relief. See Order, Alliance, No. 94-1396
(D.C. Cir. Feb. 5, 2002), ECF No. 656132 (terminating
case).
3. Listing Decisions Since 1994
In succeeding years, EPA implemented the safe
alternatives policy as established in 1994. The agency
regularly added newly-developed substitutes to the
acceptable list. It also added existing substitutes to
the unacceptable list based on new information reveal-
ing serious health and environmental risks and the
availability of alternatives.
For example, in 1996 the agency prohibited contin-
ued use of sulfur hexafluoride (“SF6”) as a substitute
propellant in aerosol products, because that chemical
has a global warming potential 24,900 times that of
carbon dioxide, and because safer alternative propel-
lants were available. 61 Fed. Reg. 54,030, 54,038 (Oct.
16, 1996).
 12
And in 1999 EPA banned use of hexafluoropropyl-
ene (“HFP”) as a substitute refrigerant because it was
shown to cause kidney damage in exposed workers.
64 Fed. Reg. 3,865 (Jan. 26, 1999).
Both of these substitutes were highly dangerous, yet
neither one depletes the ozone layer. In both cases,
the bans applied to all parties. They precluded new
users, of course. But far more importantly, they
required persons who were already using these chem-
icals to stop doing so.
B. 2015 Regulation of HFCs
As noted above, Mexichem and Arkema were put on
notice in 1994 that because HFCs are potent
greenhouse gases with thousands of times the global
warming potential (GWP) of carbon dioxide, EPA had
approved them as a “near-term option,” and reserved
the right to revise this classification if new data
showed greater risks or if safer substitutes emerged.
59 Fed. Reg. at 13,071, 13,107.
Both of those conditions came to pass over the next
two decades. In 2009, EPA determined that HFCs and
five other greenhouse gases endanger public health
and the environment by contributing to climate change
that is, among other things, intensifying deadly heat-
waves, droughts, extreme storms, rising seas, and the
spread of disease. 74 Fed. Reg. 66,496, 66,497–98
(Dec. 15, 2009). The D.C. Circuit upheld the endan-
germent finding in 2012. Coal. for Responsible
Regulation v. EPA, 684 F.3d 102 (D.C. Cir. 2012), rev’d
in part on other grounds, Util. Air Regulatory Grp. v.
EPA, 134 S. Ct. 2427 (2014).
Over this same period industry developed and EPA
approved numerous new acceptable substitutes for
many end-uses that formerly used ozone-depleting
 13
substances and now use HFCs. For example, chemical
producers had developed hydrofluoroolefins (“HFOs”)
with much less heat-trapping power than HFCs. One
such substance, HFO-1234yf, an alternative suitable
for car air conditioners, is approximately 1,300 times
less potent than HFC-134a, one of the substitutes that
EPA approved in 1994 as a “near term option” for
ozone-depleting CFCs. In 2011, EPA listed HFO-
1234yf as an acceptable substitute for CFCs in car air
conditioning. 76 Fed. Reg. 17,488 (Mar. 29, 2011).
In 2010 and 2012, the Natural Resources Defense
Council and other organizations petitioned EPA under
Section 612(d) to remove various uses of HFCs from
the list of acceptable alternatives, citing new evidence
of danger and the advent of safer substitutes.4
Scientific evidence continued to mount, as researchers
reported in 2013 that unrestrained HFC growth could
add significantly to global average temperatures in
this century, seriously amplifying the dangers of
climate change.5
In 2015, after notice and comment, EPA added
HFCs to the unacceptable list for specific uses, includ-
ing aerosol propellants, motor vehicle air conditioners,
various supermarket cooling systems, vending machines,

4
See Letter from David. D. Doniger, NRDC, to Lisa P. Jackson,
Administrator, EPA (May 7, 2010), https://www.nrdc.org/sites/
default/files/air_10050701a.pdf; Letter from David. D. Doniger,
NRDC, to Lisa P. Jackson, Administrator, EPA (Apr. 27, 2012),
https://www.nrdc.org/sites/default/files/glo_1204 2701a.pdf.
5
Y. Xu et al., The Role of HFCs in Mitigating 21st Century
Climate Change, 13 Atmos. Chem. Phys. 6083, 6087 (2013),
available at https://doi.org/10.5194/acp-13-6083-2013.
 14
and some insulating foams. 80 Fed. Reg. 42,870 (July
20, 2015).
In the final rule, EPA observed that “HFC emissions
are projected to increase substantially and at an
increasing rate over the next several decades if left
unregulated.” Id. at 42,879. HFC emissions in the
United States are increasing “more quickly than those
of any other [greenhouse gases], and globally they are
increasing 10-15% annually,” driven in part by the
rapid growth of air conditioning. Id. EPA projected
that HFC emissions would “double by 2020 and triple
by 2030.” Id. Once in the air, HFCs “rapidly accumulat[e]
in the atmosphere.” Id. Atmospheric concentrations
of specific HFCs were rising by 10-16 percent per year.
Id. EPA found that if this growth were unchecked, the
contribution to global warming from HFC emissions in
2050 could reach 27 to 69 percent of the warming from
that year’s carbon dioxide emissions. Id.
In comments on the proposal, Arkema repeated
arguments that had been raised and resolved against
it in the 1994 rule, including the contention that
“replace” is a one-time-only event. 80 Fed. Reg. at
42,936–37. EPA responded by tracing how the agency
had resolved those issues in 1994. See id. The agency
did not reopen those issues. Rather, it made clear that
it was applying the decision-making criteria estab-
lished in the 1994 rule to an expanded body of
information on risks and substitutes:
It has now been over twenty years since the
initial [safe alternatives] rule was promul-
gated. In that period, the menu of available
alternatives has expanded greatly and now
includes many substitutes with diverse charac-
teristics and varying effects on human health
and the environment. . . . In addition to an
 15
expanding menu of substitutes, developments
over the past 20 years have improved our
understanding of global environmental issues.
. . . GWPs and climate effects are not new
elements in our evaluation framework, but . . .
the amount and quality of information has
expanded.
Id. at 42,878. The 2015 rule set effective dates for
each end-use that allowed reasonable transition times
for terminating the use of HFCs. See, e.g., id. at
42,883–84 (aerosols), 42,892–96 (motor vehicle air
conditioning), 42,905–06 (retail food refrigeration).
Overall, those deadlines afforded HFC producers
and users more than twice the 10-year span that Elf
Atochem (now Arkema) said in 1994 would allow
industry to recoup its investments. See supra p. 9.
Mexichem and Arkema filed petitions for review of
the 2015 rule invoking the D.C. Circuit’s jurisdiction
under Section 307(b)(1) of the Act, 42 U.S.C.
§ 7607(b)(1).6

6
In 2016, the parties to the Montreal Protocol adopted an
amendment to phase down production of HFCs. Amendment to
the Montreal Protocol on Substances that Deplete the Ozone
Layer, Oct. 15, 2016, U.N.T.C. XXVII.2.f. The current
administration stated in 2017 that it has initiated the process to
consider ratification of the amendment by the United States. See
Remarks at the 29th Meeting of the Parties to the Montreal
Protocol by Judith G. Garber, Principal Deputy Assistant
Secretary, Bureau of Oceans and International Environmental
and Scientific Affairs (Nov. 23, 2017), https://www.state.gov/
e/oes/rls/remarks/2017/275874.htm. EPA’s authority to prohibit
specific uses of HFCs, however, is rooted in domestic law –
Section 612 of the Clean Air Act – and is entirely independent of
the amendment.
 16
C. The Decision Below
On August 8, 2017, a divided panel of the D.C.
Circuit issued a decision that eviscerates Section 612
and leaves the safe alternatives program in total
disarray.
First, the panel unanimously upheld EPA’s authority
under Section 612(c) to move HFCs from the acceptable
list to the unacceptable list and rejected all of Mexichem’s
and Arkema’s claims that the listing change was
arbitrary and capricious. App. 11a–12a, 22a. The
panel also specifically affirmed that adverse climate
impacts are a valid basis for prohibiting a substitute
under Section 612. App. 22a–24a.
Nonetheless, over Judge Wilkins’ forceful dissent,
Judges Kavanaugh and Brown went on to hold that
even though EPA could add HFCs to the statutory list
of prohibited substitutes, EPA could not stop product
manufacturers that already use HFCs from continuing
to do so – no matter how harmful HFCs may be, or how
much safer the available alternatives. App. 17a–18a.
1. The Majority Opinion
The majority first characterized the 2015 rule as a
“new interpretation” of EPA’s legal authority, reject-
ing the agency’s explanation that it had adopted the
current interpretation in the 1994 rule and consist-
ently applied it in 2015. App. 13a. The majority then
held that “Section 612 does not require (or give EPA
authority to require) manufacturers to replace non-
ozone-depleting substances such as HFCs.” App. 3a.
The majority’s statutory analysis hinges on its
interpretation of the term “replace.” Where EPA
interpreted “replace” as a continuing process, occur-
ring each time a manufacturer uses HFCs instead of
 17
ozone-depleting substances, the majority held that
dictionary definitions unambiguously confine “replace”
to only “a one-time occurrence.” App. 14a. According
to the majority, once a manufacturer transitions from
ozone-depleting substances to a non-depleting substi-
tute, “there is no ozone-depleting substance to ‘replace,’”
and EPA has no further authority. Id.
Despite upholding the listing of HFCs as unaccepta-
ble, prohibited substitutes, the majority vacated the
2015 Rule “to the extent it requires manufacturers to
replace HFCs with a substitute substance.” App. 26a.
2. The Dissent
Judge Wilkins dissented. He explained that the
majority’s definition of the term “replace” was not the
only one available, and that “[b]ecause the term
‘replace’ is susceptible of multiple interpretations in
this context, it cannot serve as the basis for discerning
clear congressional intent.” App. 27a. He cited
examples from the same dictionaries that the majority
consulted, describing replacement processes that play
out over time, such as the transition from internal
combustion engines to hybrids and electric cars, and
the transition from older medicines to generic substi-
tutes. App. 30a–31a. In those cases, Wilkins wrote:
the ubiquitous product that has become the
industry standard is “replaced” by a number
of substitutes, and the replacement takes
place not at a specific point in time, not just
once, and not by a single substitute. Instead,
the ubiquitous item is “replaced” by any
number of substitutes over the course of
years, and it may be the case that one
 18
substitute is succeeded by a better substitute
at some point in time.
Id.
Examining the statutory structure, context, and
purpose, Judge Wilkins concluded that EPA had
reasonably interpreted “replace” and that the 2015
rule should have been upheld in its entirety. App.
29a–40a.
D. EPA’s 2018 Guidance
The decision below has upset the business plans of
myriad companies and end-users affected by the 2015
rule. In an April 2018 guidance document issued after
the lower court decision, EPA underscored that “regu-
lated entities are experiencing substantial confusion
and uncertainty regarding the meaning of the
vacatur.” 83 Fed. Reg. 18,431, 18,434 (Apr. 27, 2018).
The agency also noted that implementing the partial
vacatur would create illogical results. For example,
under the panel decision, EPA acknowledged that
product manufacturers will be able to keep making
HFC-containing products that “an end user still using
an [ozone-depleting substance] may not be able to
purchase and use.” Id. at 18,436.
The decision would require EPA to make other
complex distinctions among categories of users that
are not found in the statute or in the 1994 and
subsequent regulations. For example, EPA observed
that nothing in its regulatory language “draws a
distinction between product manufacturers and other
users of substitutes . . . nor between someone using
an HFC and someone using an [ozone-depleting
substance].” Id. at 18,434. EPA explained that even
the meaning of “product manufacturer” is not self-
evident, giving the example of supermarket refrigera-
 19
tion systems that are made in a factory, but not filled
with HFCs until assembled at the site where they will
be used. Id. Further, the panel decision does not
provide clarity on “the date by which a manufacturer
must have switched to an HFC in order to avoid
being subject” to the 2015 rule, which could lead to
“confusion about whether or not the listings . . . apply
to individual manufacturers.” Id. The decision also
does not address how the prohibited listing applies to
a manufacturer that is using HFCs in some product
lines and ozone-depleting substances in others. Id. at
18,435.
As a result, even though the court upheld the
prohibited-listing of HFCs and ordered only a partial
vacatur as to product manufacturers, EPA threw up
its hands and announced that it “will not apply the
HFC use restrictions or unacceptability listings in the
2015 Rule for any purpose” and “will implement the
court’s vacatur by treating it as striking the HFC
listings in the 2015 Rule in their entirety” pending a
future rulemaking in which some restrictions may be
re-proposed at an unknown date. Id. at 18,436
(emphasis added). The guidance document thus has
magnified the harm to public health and the environ-
ment, while simultaneously leaving industry in the
dark on the scope and timing of their responsibilities.
REASONS FOR GRANTING THE PETITION
I. THE DECISION BELOW DESTROYS A
CORE CLEAN AIR ACT PROGRAM AND
PUTS MILLIONS OF AMERICANS IN
DANGER
When Congress enacted Title VI of the Clean Air Act
it wanted to make sure that the phase-out of ozone-
depleting substances would not create other health or
 20
environmental risks – risks that could be even greater
than those from the original chemicals. See supra pp.
6–7. Section 612 was enacted to ensure that, “[t]o
the maximum extent practicable,” the phase-out
would “reduce overall risks to human health and the
environment.” 42 U.S.C. § 7671k(a).
This was not intended to be just a one-shot exercise.
Congress set no sunset date for the safe alternatives
program established by Section 612. To the contrary,
Congress envisioned a continuing program evolving
toward new and safer alternatives and reduced overall
health and environmental risk. Congress underscored
this objective by giving any person the right to petition
EPA at any time to update the lists of safe and
prohibited substitutes based on new information on
risks and safer alternatives. See 42 U.S.C. § 7671k(d).
The panel majority disregarded these statutory
provisions and congressional purposes when it created
a permanent grandfathered status for unsafe alterna-
tives that are already in use. That grandfathering
renders Section 612 toothless, with dire consequences
for human health and the environment.
The decision leaves EPA powerless to act when new
scientific data shows that an existing substitute poses
greater risk than understood when it was initially
deemed acceptable – in this instance, as evidence
emerged of HFCs’ extreme heat-trapping potency and
extraordinarily rapid growth rate. It also leaves EPA
powerless to act when industrial innovators develop
new alternatives with a tiny fraction of the adverse
health or environmental impact of the substitutes
currently in use – in this instance, punishing companies
that invested more than one billion dollars to bring to
market safer refrigerants with less than one-thousandth
the impact of HFCs, and to commercialize new air
 21
conditioners, refrigerators, and other products adapted
to use them.
By loosening restraints on the rapid growth of these
extremely potent greenhouse gases, the decision will
seriously worsen the impacts of climate change –
impacts that are now far more evident and urgent
than when this Court heard Massachusetts v. EPA,
549 U.S. 497 (2007).7
And the health and environmental consequences of
this crippling interpretation go well beyond the
present HFC rule. The decision below would have
blocked EPA from stopping the use of the kidney-toxic
refrigerant HFP in 1999, which threatened grave
damage to exposed workers. And it would have
blocked EPA from stopping the use of the super-potent
greenhouse gas SF6 in aerosol products in 1996, when
safer propellants were readily available. See supra pp.
11–12. Worse still, the majority decision would even
allow manufacturers to re-start using HFP, SF6, or
any other substitute that EPA has listed as prohibited,
as long as the manufacturer had already ceased using
ozone-depleting substances.
The decision has upset HFC transition plans across
a wide variety of industries that, in EPA’s words, “are
experiencing substantial confusion and uncertainty
regarding the meaning of the vacatur.” 83 Fed. Reg.

7
U.S. Global Change Research Program, Climate Science
Special Report: Fourth National Climate Assessment, Volume I at
12 (Donald. J. Wuebbles et al. eds., 2017) (Since the 2014
publication of the Third National Climate Assessment, “stronger
evidence has emerged for continuing, rapid, human-caused
warming of the global atmosphere and ocean. . . . The last few
years have also seen record-breaking, climate-related weather
extremes, the three warmest years on record for the globe, and
continued decline in arctic sea ice.”).
 22
at 18,434. Although the majority professed concern for
the reliance interests of HFC-using product manufac-
turers, not a single product manufacturer joined the
lawsuit to block the 2015 Rule. Instead of protecting
these stakeholders, the decision rewards two chemical
companies whose business strategy is to keep making
old and dangerous HFCs in old chemical plants that
have been fully paid off. As Arkema admitted in 1994,
HFC producers needed 10 years to recoup their invest-
ments. See supra p. 9. The 2015 rule gave them more
than 20 years.
The majority’s ruling favors these two companies
at the expense of the innovative chemical makers
and product manufacturers that invested heavily in
reliance on the ground rules established nearly 25
years ago. They reasonably counted on the acceptable
and unacceptable lists continuing to evolve in response
to new science and new alternatives. The decision
destroys their incentives and their investment-backed
expectations.
Most of all, the ruling gravely harms millions of
consumers that rely on the safe alternatives program
to make sure that the products they use are safe for
their health, their immediate surroundings, and the
environment world-wide.
Congress did not intend these hazardous and
perverse results. This Court’s intervention is now the
only way to preserve this important public health and
environmental program.
 23
II. THE MAJORITY’S ERROR CAN BE
CORRECTED ONLY BY THIS COURT
Without this Court’s review, Section 612’s safe
alternatives policy will be a dead letter. Because the
D.C. Circuit has exclusive jurisdiction over Clean Air
Act rules of national applicability, 42 U.S.C. § 7607(b)(1),
there is no possibility for a circuit split to develop. Nor
is there any other avenue for further percolation.
Unless the Court grants this petition, the D.C. Circuit’s
decision will be the final word on the future of Section
612 and the safe alternatives program.
The Court regularly reviews D.C. Circuit opinions
concerning nationally significant regulations, where a
circuit split is unlikely or, as in this case, impossible
to develop because the D.C. Circuit has exclusive
jurisdiction. See, e.g., EPA v. EME Homer City
Generation, L.P., 134 S. Ct. 1584 (2014) (reversing
divided panel decision invalidating Cross-State Air
Pollution Rule); FERC v. Elec. Power Supply Ass’n,
136 S. Ct. 760 (2016) (reversing divided decision
invalidating demand response rule under Federal
Power Act); see also Michigan v. EPA, 135 S. Ct. 2699,
2706 (2015); Util. Air Regulatory Grp. v. EPA, 134 S.
Ct. 2427 (2014). This case equally merits the Court’s
review.
III. THE DECISION BELOW CONFLICTS
WITH THE TEXT, STRUCTURE, AND
PURPOSE OF SECTION 612
Section 612(c) makes it unlawful for anyone to use a
substitute for ozone-depleting substances in a manner
that EPA has found to be unsafe, regardless whether
a party was already using the substitute when the
agency added it to the prohibited list, and regardless
when a party last used an ozone-depleting substance.
 24
This is how EPA has consistently interpreted Section
612 since 1994. See 40 C.F.R. § 82.174(d) (“No person
may use a substitute after the effective date of any
rulemaking adding such substitute to the list of
unacceptable substitutes.”). See supra pp. 9–11.
The petitioners below challenged this interpretation
through their trade association in 1994, but obtained
no relief. See supra p. 11. The panel erred in giving
the petitioners a second bite at the apple. In order to
promote the finality and stability of Clean Air Act
rules, Section 307(b)(1) of the Act requires challenges
to be filed within 60 days of the rule’s promulgation.
42 U.S.C. § 7607(b)(1). EPA objected to the untimely
attack on the 1994 rule in its brief below. EPA Br. 18–
19 (ECF No. 1615278). The majority nonetheless
proceeded to review EPA’s interpretation and to
misconstrue Section 612.
EPA’s longstanding construction of Section 612 is
undoubtedly a reasonable reading of that provision.
Indeed, this is the only reasonable interpretation of
the provision. The majority’s contrary interpretation
misreads the statutory text, structure, and purpose
and produces a host of irrational results that Congress
could not have intended. As the dissent found, the
traditional tools of statutory construction do not
command these counterintuitive and counterproduc-
tive results.
A. The Statutory Text Does Not Mandate
the Majority’s Restrictive Interpretation
of “Replace”
Section 612(c) provides that EPA “shall promulgate
rules under this section providing that it shall be
unlawful to replace any [ozone-depleting] substance
with any substitute” found to be unsafe. Purporting to
 25
rely on a dictionary definition, the majority held that
the term “replace” as used in this provision unambigu-
ously means a “one-time occurrence.” App. 14a–15a.
Based on its interpretation of this term, the majority
held that EPA could not regulate a product manufac-
turer’s use of a substitute after the manufacturer
ceased using ozone-depleting substances, because at
that point “there is no ozone-depleting substance to
‘replace.’” App. 14a.
The majority’s textual analysis is deficient for
several reasons. First, the majority ignored dictionary
definitions that undermine its conclusion. In dissent,
Judge Wilkins cited examples from the same diction-
aries consulted by the majority that define “replace”
as a substitution process occurring in stages over
time, such as the replacement of internal combustion
engines by hybrid and electric cars. In those cases,
“the ubiquitous item is ‘replaced’ by any number of
substitutes over the course of years, and it may be the
case that one substitute is succeeded by a better
substitute at some point in time.” App. 29a–31a.
Other examples of continuing replacement pro-
cesses come readily to mind. If a teacher is absent for
maternity leave, her students may have a succession
of substitute teachers. In common usage, each substitute
“replaces” not only the one before, but also the original
teacher. Soft drink bottlers have replaced sugar with
a succession of artificial sweeteners (e.g., saccharin,
aspartame, and sucralose). Each “sugar substitute”
replaces sugar, regardless of the order in which they
were adopted. A long-lived individual may have
multiple replacements of the same hip. Each one
replaces the original hip, not just the one before.
Second, the majority failed to read the terms
“replace” and “replacement” in light of the synonyms
 26
Congress used in Section 612. As the dissent observed,
“substitute” appears ten times in Section 612 and
“alternative” twelve times. App. 33a. An “alternative”
is “[o]ne of a number of possible choices or courses of
action.” Am. Heritage Dictionary (5th ed. 2018 online).
A new and lower-risk refrigerant is an alternative to
its ozone-depleting predecessor even if a company
adopted a different alternative first. The term
“substitute” is equally broad, referring to items that
can be used to serve the same function. The inter-
changeable use of these capacious synonyms reinforces
that it was Congress’s intention to create an ongoing
process to fill the functions originally served by
ozone-depleting substances with progressively safer
substitutes.
For these reasons, the statutory text does not
support the majority’s conclusion that “replace” is
unambiguously a one-time occurrence. As the dissent
wrote: “Because the term ‘replace’ is susceptible of
multiple interpretations in this context, it cannot
serve as the basis for discerning clear congressional
intent.” App. 27a. The error in the majority’s conclu-
sion is further demonstrated by the context, structure,
and purpose of the statute.
B. The Majority’s Interpretation Conflicts
with the Statutory Context and
Structure
The majority’s restrictive interpretation of “replace”
is inconsistent with the statutory context and struc-
ture. As the dissent explained, Section 612(a) and the
first sentence of Section 612(c) are “written in the
passive voice and without identifying a particular
target of the regulation [and] appear to apply to
anyone and everyone, including retailers, product
manufacturers and chemical manufacturers.” App.
 27
31a. As the dissent notes, id. n.1, in other provisions
of Title VI, Congress wrote prohibitions that specify
the regulated parties with particularity. If Congress
had intended the prohibition to apply only to entities
still using ozone-depleting substances when a substi-
tute was listed as unsafe, it surely would have said so.
The point is reinforced by the second sentence of
Section 612(c), which directs EPA to list “substitutes
prohibited . . . for specific uses.” Like the prior sentence,
the prohibited-list sentence applies to anyone and
everyone; it does not say prohibited for only some
entities engaged in those uses. By grandfathering all
of the entities already using the substitute in that
way, the majority’s holding deprives the prohibited list
of nearly all force and effect.
The majority’s interpretation also conflicts with the
“[r]ight to petition” created under Section 612(d). The
dissent explained that “[b]y creating this petition
process, it is evident that Congress desired the safe
alternatives list to be a fluid and evolving concept that
promotes those alternatives that pose the least overall
risk to human health and the environment.” App. 36a.
Yet the “process becomes a half measure if EPA is only
allowed to ‘replace’ an ozone-depleting substance once
and only once.” Id. By depriving EPA of the authority
to take meaningful action in response to a Section
612(d) petition, the majority’s decision defeats the
“[r]ight to petition” created by that provision.
C. The Majority’s Interpretation Conflicts
with the Express Statutory Policy
Section 612(a) states Congress’s policy of ensuring
“[t]o the maximum extent practicable” that ozone-
depleting substances are replaced by “chemicals,
product substitutes, or alternative manufacturing pro-
 28
cesses that reduce overall risks to human health and
the environment.” 42 U.S.C. § 7671k(a). As the
dissent found, the majority’s interpretation “makes a
mockery” of that congressional purpose by halting the
process of risk reduction at the adoption of the first
non-ozone-depleting substitute. See App. 34a. If
allowed to stand, the majority’s interpretation will
leave EPA powerless to respond to new data on
previously unknown or underestimated risks, as the
agency did by banning the kidney toxin HFP and the
greenhouse gas SF6, and as it has tried to do with
HFCs. The majority’s interpretation will also under-
mine the statutory purpose of promoting development
of new alternatives. If EPA cannot make incumbent
users stop using prohibited substitutes when new and
safer alternatives become available, the incentives for
industry to invest in developing such alternatives are
destroyed.
The majority hypothesized that without limiting
“replace” to its restrictive one-time-only reading, EPA
could continue regulating substitutes for “even 100
years or more.” App. 15a. But there is no textual,
structural, or purposive evidence that Congress
intended Section 612 to sunset. To the contrary,
Congress’s inclusion of a petition process indicates
that Section 612 was intended to function indefinitely
as many other Clean Air Act provisions do. See, e.g.,
42 U.S.C. § 7409 (National Ambient Air Quality
Standards reviewed every five years). The fact that
courts have conventional tools to restrain any excesses
is also pertinent. If EPA, for example, were to require
another refrigerant transition without demonstrating
a meaningful reduction in overall health and envi-
ronmental risk or the availability of safer alternatives,
the D.C. Circuit could easily find that listing action
arbitrary and capricious. Here, however, the panel
 29
unanimously upheld EPA’s HFC listing decision
against all such challenges. App. 22a–25a.
Finally, even though the majority agreed that EPA
could add HFCs to the prohibited list based on climate
risk, their opinion suggested that EPA’s authority to
regulate manufacturers currently using HFCs was
undermined by Congress’s “failure to enact general
climate change legislation.” App. 18a. This Court’s
seminal climate change decision, Massachusetts v. EPA,
rejected that very argument, holding that the current
Clean Air Act authorizes regulation of greenhouse
gases and that Congress’s failure to pass additional
legislation is irrelevant. 549 U.S. at 529-30. By
charging EPA to “reduce overall risk to human health
and environment,” Section 612 plainly encompasses
climate risk, and no new enactment is needed.8
D. The Majority’s Interpretation Pro-
duces Illogical Consequences and
Perverse Incentives That Congress
Could Not Have Intended
The majority’s interpretation opens loopholes and
creates illogical distinctions that Congress could not
have intended. As EPA pointed out in 1994, the one-
time-only interpretation of “replace” allows regulated
parties to grandfather themselves from impending
restrictions on unsafe substitutes simply by starting
to use them before EPA can complete a rulemaking to

8
The majority suggested that EPA could accomplish the
same ends under other Clean Air Act provisions or the Toxic
Substances Control Act. App. 17a. The majority never elabo-
rated how these laws might apply. Even if they could be
jury-rigged for this purpose, that is no reason to discard Section
612, which Congress enacted to address this specific problem,
with full knowledge of those other laws.
 30
put them on the unacceptable list. 59 Fed. Reg. at
13,048. As noted above, the dissent found that this
opportunity for evasion grossly undercuts the statu-
tory purpose of reducing overall human health and
environmental risk. App. 34a.
The majority’s reading has already sown, in EPA’s
words, “substantial confusion and uncertainty” among
the regulated industry. 83 Fed. Reg. at 18,434. See
supra pp. 18–19. And going forward, it will produce
utterly illogical consequences. For example, hundreds
of thousands of commercial buildings and supermarkets
still operate equipment containing ozone-depleting
refrigerants, equipment that will need to be retired
and replaced over the coming years.9 As the dissent
observed, the owners of these facilities are not permit-
ted to replace that equipment with new HFC-containing
equipment – equipment that the majority opinion
allows product manufacturers to keep making.
App. 32a. The majority opinion, as EPA recently
acknowledged, creates “cases where product manufac-
turers may be making some products that an end user
still using an [ozone-depleting substance] may not be
able to purchase and use.” 83 Fed. Reg. at 18,436.
Congress could not have intended this result.
The majority opinion creates irrational distinctions
between competing manufacturers making products
for the same end-use. For example, most manufactur-
ers of new cooling systems for large buildings (“chillers”)
converted their product line from ozone-depleting
CFCs to HFCs in the 1990s, but one company manu-

9
See ICF International, Technical Support Document: Analysis
of the Economic Impact and Benefits of Final Revisions to the
National Recycling and Emission Reduction Program at 19,
Docket No. EPA-HQ-OAR-2015-0453-0225 (Sept. 2, 2016).
 31
factures chillers using a hydrochlorofluorocarbon
(“HCFC”) – an ozone-depleting refrigerant that the
statute allows to be used in new equipment manufac-
tured before 2020.10 See 42 U.S.C. § 7671d(a)(3). Now
that safer alternatives are available for chillers, EPA
placed this use of HFCs on the prohibited list and set
reasonable deadlines for chiller manufacturers to
adopt non-HFC alternatives. 81 Fed. Reg. 86,778
(Dec. 1, 2016). Under the majority opinion, however,
only the company still using the ozone-depleting
HCFC will have to adopt non-HFC alternatives, while
its competitors are grandfathered to keep using HFCs
indefinitely. Congress could not have intended this
disparate treatment.
Worst of all, the majority opinion creates a loophole
that would allow the reintroduction of dangerous
substitutes that EPA prohibited in 1994. For example,
EPA banned use of a compound called “Hydrocarbon
Blend A” in a variety of air conditioning and refrigera-
tion applications because leaky uses “may pose a high
risk of fire.” 59 Fed. Reg. at 13,082. It would now be
legal for an entity that presently uses HFCs to replace
them with Hydrocarbon Blend A, because it would not
be (in the majority’s words) “taking the place of” an
ozone-depleting substance. Congress could not have
intended to open this loophole.
These illogical and perverse results further confirm
that EPA’s long-standing interpretation of Section
612’s text, structure, and purpose establish is unam-
biguously correct. Even if there were residual ambiguity,
EPA’s interpretation is reasonable, as Judge Wilkins
correctly concluded. App. 39a–46a. The majority’s

10
See Trane, CenTraVac Centrifugal Water-Cooled Chillers,
https://tinyurl.com/yc6favav (last visited June 20, 2018).
 32
failure to defer to that construction is another ground
for reversal. See Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984).
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,

DAVID D. DONIGER
Counsel of Record
DAVID R. BAAKE
IAN FEIN
GERALD GOLDMAN
BENJAMIN LONGSTRETH
MELISSA J. LYNCH
NATURAL RESOURCES
DEFENSE COUNCIL
1152 15th St. NW Suite 300
Washington, DC 20005
(202) 289-6868
ddoniger@nrdc.org
Counsel for Petitioner

June 25, 2018